Instagram: embedding a photo does not automatically comply with copyright

Instagram says that photos placed on sites via an embed do not automatically comply with copyright. The embed API is not covered by the company’s sublicenses for lawfully sharing photos, parent company Facebook says.

In theory, it is therefore necessary that website administrators first ask permission from an Instagram user before embedding their photo on a site. Administrators who fail to do so may be violating the copyright of the poster.

Instagram’s parent company Facebook says in an email to Ars Technica that it does not automatically grant the rights with an embed. Users automatically give the copyright to their photos to Instagram when uploaded. Until now, Instagram has implicitly agreed to copyright when embedding a photo via the api, but now the company declares that this is not the case.

“Our terms and conditions give us the right to sublicense, but we don’t grant it for our embed APIs,” Instagram wrote in the statement. “Our policy states that third parties must obtain the necessary rights from the copyright holders, including having a license to share the content if required by law.”

The statement follows two separate lawsuits that photographers had filed against media. In April, photographer Stephanie Sinclair filed a lawsuit against Mashable. Mashable had embedded a photo of the photographer with an article. Sinclair argued that the site infringed its copyright, but the judge did not agree.

Photographer Elliot McGucken’s second lawsuit against Newsweek magazine revolved around the same thing. However, a judge said earlier this week that Instagram’s terms and conditions allowed the embedding of a photo just like that.